The panel addressed arguments challenging Cooper’s indictment and trial, ultimately affirming his conviction for a number of drug and firearms offenses. Indictment Sufficient and Jury Instructions Not a Constructive AmendmentCooper challenged the sufficiency of Counts 2 and 4 of the indictment, which alleged violations of 18 U.S.C. § 924(c) with the caption "Possessing a Firearm in Furtherance of a Drug Trafficking Crime" but the allegations that he "knowingly possessed a firearm . . . during and in relation to a drug trafficking crime." Cooper argued that the allegations of "during and in relation to" do not arise to a violation of § 924(c) and that the indictment improperly combined elements of two different types of conduct proscribed by § 924(c). The panel held that the caption cured any ambiguity of the charged offense conduct and that, viewed practically, the indictment contained all the elements of the offenses charged. Since the indictment was sufficient, the panel also held that the district court’s instructions regarding the possession of a firearm "in furtherance of" a drug trafficking offense did not broaden the bases of conviction beyond the indictment and did not amount to a constructive amendment.

No Abuse of Discretion to Not Dismiss Juror
The panel found that the district court did not abuse its discretion by not striking a juror who responded to a question as to whether the race of the black men who had burgled the juror’s home years ago would impact his treatment of Cooper, who is also black, by saying that he "would try to be impartial." Affirmed Denial of Lesser-Included-Offense InstructionCooper proposed a lesser-included-offense jury instruction of simple possession for the count that charged him with possession with intent to distribute more than fifty grams of crack cocaine. Given the evidence presented at trial of crack cocaine weighing approximately 42 grams and drug manufacturing and distribution paraphernalia found in Cooper’s house, the panel found "no abuse of discretion in the district court’s holding that no jury could rationally find Cooper guilty of only simple possession."No Due Process Violation by Improper Government Statements at TrialAt trial, the Government asked a police officer witness whether he had asked Cooper for consent to search his house. Cooper objected that this was an impermissible inquiry into Cooper’s invocation of his Fourth Amendment right not to consent to a search. The Government’s witness never answered the question, so the jury never heard whether Cooper had refused permission for a warrantless search. "Because of the extremely limited impact of the objected-to question on the trial proceedings and the substantiality of the evidence presented," the panel concluded "that the Government’s question did not prejudice Cooper’s substantive rights and was, if erroneous at all, harmless error."Inoperable Firearms Can Support Possession of Firearms ConvictionsCooper argued that the evidence supporting his convictions for possession of firearms was insufficient because the Government did not introduce any evidence showing that the firearms were actually capable of firing. The panel rejected this argument since the definition of "firearm" includes any weapon that "is designed to or may readily be converted to expel a projectile by the action of an explosive . . . ." The panel found that a rational jury could find, based on the evidence presented, that Cooper possessed firearms as defined by 18 U.S.C. § 921(a)(3).

Florida Conviction of Sexual Battery is § 2L1.2 Crime of Violence

United States v. Garza-Guijan, No. 11-20508 (Apr. 29, 2013) (Jones, Dennis, Higginson)
The panel found that Garza’s prior Florida state court conviction for sexual battery was a "forcible sex offense" as defined in the U.S. Sentencing Guidelines for a sixteen-level enhancement under § 2L1.2. The Florida statute prohibited committing sexual battery upon a person 12 years of age or older "without that person’s consent" and with the use of "physical force and violence not likely to cause serious personal injury." The panel dismissed Garza’s argument that the "contours of non-consent under Florida law are somehow broader than the Guidelines category."

The Government agreed on appeal that the district court erred in finding that Garza’s prior Florida burglary conviction was a crime of violence. See United States v. Gomez-Garza, 485 F.3d 301 (5th Cir. 2006). Of course, that did not help decrease Garza’s sentence given his sexual battery conviction.

Monday, April 29, 2013

State Conviction for Possession with Intent to Distribute for No Remuneration Is Not Aggravated Felony

Moncrieffe v. Holder, No. 11-702 (Apr. 23, 2013) (Justice Sotomayor, majority)
Applying (and celebrating) the categorical approach, the Supreme Court held that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute "illicit trafficking in a controlled substance" under section 1101(a)(43) of the Immigration and Nationality Act, and is thus not an aggravated felony subjecting a noncitizen to mandatory deportation and ineligibility for certain forms of discretionary relief.

The Court concluded:

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as "illicit trafficking in a controlled substance," and thus an "aggravated felony." Once again we hold that the Government’s approach defies "the ‘commonsense conception’" of these terms. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, "does not fit easily into the ‘everyday understanding’" of "trafficking," which "‘ordinarily . . . means some sort of commercial dealing.’" Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53–54). Nor is it sensible that a state statute that criminalizes conduct that the [Controlled Substances Act] treats as a misdemeanor should be designated an "aggravated felony." We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA.

Here, Adrian Moncrieffe possessed 1.3 grams of marijuana, which was accepted as a "small amount." Because the meaning of "small amount" was not at issue, the Court did not define the term "small amount."

Justice Thomas, joined by Justice Alito, dissented.

Thanks to Jennifer Niles Coffin, Research & Writing Attorney for the FPD Sentencing Resource Counsel Project, for the summary. See the case page on scotusblog for more info.

Tuesday, April 23, 2013

No Sex Act Required for Child Sex Trafficking; Harboring Counts for Same Victims in Different Locations Not Plain Error

United States v. Garcia-Gonzalez, No. 11-41097 (Apr. 17, 2013) (Higginbotham, Smith, Elrod)
Garcia was convicted of three counts of child sex trafficking, one count of conspiracy to harbor illegal aliens, and six counts of harboring illegal aliens. He arranged for four minor illegal female aliens to be smuggled from Honduras into the United States under the false pretenses that they would be working in a restaurant. Instead, Garcia made them work in his bar and kept their "wages" to pay down the $4,500 smuggling debt they "owed" him. The only way the girls could earn money to keep for themselves was through having sex with his customers. Two of the four girls had sex with customers; the others did not. Garcia threatened to harm them and their families if they escaped, and the girls were constantly supervised by Garcia or one of his employees.

No Sex Act Required for Child Sex Trafficking
The panel, in affirming a supplemental instruction given by the district court judge, found that a sex act did not have to occur in order for Garcia to be guilty of child sex trafficking under 18 U.S.C. § 1591(a). The panel reasoned that the future verb tense in the statutory language—"will be caused to engage in a commercial sex act"—"indicates that a sex act does not have to occur to satisfy the elements of the child-sex-trafficking offense." The panel also found that the evidence was sufficient to support Garcia’s conviction on all three child-sex-trafficking counts, even though one of those victims did not engage in prostitution. "[A] rational trier of fact could have concluded that Garcia knowingly harbored C.M. and B.Y., and created a situation in which he knew, or at the very least, recklessly disregarded, that his actions would cause C.M. and B.Y. to engage in prostitution with his customers."

Harboring Counts for Same Victims in Different Locations Not Plain Error
Garcia also challenged, for the first time on appeal, three of the six convictions for alien harboring on multiplicity grounds. He was charged with harboring the same three girls in a house and, in separate counts, with harboring them in his bar. The only difference between the counts was the location of the harboring. The statute prohibits harboring "in any place." 8 U.S.C. § 1324(a)(1)(A)(iii). Concluding that "any" is ambiguous because it can mean "one" or "some," the panel determined that the error was not plain. Further, Garcia did not demonstrate a miscarriage of justice resulting from this possible error. Circuit Judge Higginbotham dissented on this point, arguing that the rule of lenity counseled finding plain error and vacating one of the two alien-harboring convictions for each of the three victims.

Sentencing Challenges
Garcia also challenged his 360-month Guidelines sentence, but the panel rejected Garcia’s four arguments. First, the panel found that the two-level increase pursuant to § 2L1.1(b)(6) was not clearly erroneous because "Garcia’s actions intentionally or recklessly created a substantial risk of serious bodily injury by coercing them to engage in prostitution for financial support, regardless of their age." Even if it was clearly erroneous, the error would have been harmless.

Next, the panel rejected Garcia’s argument that the district court should not have applied the § 2L1.1(b)(6) enhancement and the six-level § 2L1.1(b)(8)(B) enhancement to the alien-harboring offenses based on the same conduct: the prostitution of minor aliens. The panel found no error because the enhancements did not necessarily implicate the same conduct since the § 2L1.1(b)(6) enhancement could apply to the one adult victim and the § 2L1.1(b)(8)(B) enhancement only applies to the minor victims. Further, even if the enhancements double-counted the same conduct, the panel stated it was not erroneous since the guidelines in question do not specifically forbid such double-counting.

Garcia also objected to the use of uncharged conduct to be treated as a separate count of conviction for sentencing purposes pursuant to § 2G1.3(d)(1). The panel held this was permissible since the uncharged conduct was relevant conduct under § 1B1.3.

Lastly, Garcia argued that the child-sex-trafficking counts should not have been grouped separately from the harboring counts for the purposes of the multi-count adjustment under § 3D1.4 since all of the ten counts substantially involve the same harm. On plain error review, the panel determined that the error did not affect Garcia’s substantial rights since the adjusted offense level would have been the same. The panel hinted, though, that this was error since the PSR used the same facts from the child-sex-trafficking counts to apply the § 2L1.1(b)(8)(B) enhancement to the alien-harboring counts.

Monday, April 22, 2013

Court’s Decision to Keep Appointed Counsel Trumps Pro Se Requests for New Counsel and Plea Withdrawal

United States v. Minor, No. 12-30247 (Apr. 17, 2013) (Jones, Dennis, Higginson) (per curiam)
Minor pled guilty pursuant to a plea agreement to conspiracy to distribute and possess with intent to distributed 50 grams or more of cocaine base or crack cocaine. He was represented by counsel at the time of the plea. He then sent the Court two pro se letters expressing dissatisfaction with counsel and a desire to withdraw his plea. At the hearing on Minor’s requests, the district court denied the motion to appoint substitute counsel because counsel secured an extremely favorable plea deal and testimony revealed that Minor would not have been able to show that fairness and justice required allowing him to withdraw his plea. The Court also rejected the pro se motion to withdraw his guilty plea because he had no right to file a motion on his own behalf since Minor was represented by counsel. Counsel did not later file a motion to withdraw plea.

The panel limited the issues raised on appeal to whether the district court fulfilled its duty under 18 U.S.C. § 3006A(c) to determine whether the interests of justice required substitution of counsel. The panel affirmed the district court’s decision to deny the request for substitution. The panel clarified that Minor will have to file a petition under § 2255 in order to pursue a claim of ineffective assistance of counsel due to counsel’s failure to re-urge the withdrawal of Minor’s plea.

Lastly, the panel found no error in Minor’s sentencing since the factual basis for his plea was powder cocaine and he was sentenced only using the powder cocaine ranges, not the ones for crack.

To Be “Found” Under § 1326, Immigration Authorities—Not Other Officials—Must Discover Alien

(1) immigration authorities must have specifically discovered and noted the alien’s physical presence, and (2) knowledge of the illegality of the alien’s presence must be reasonably attributable to immigration authorities.

Compian-Torres argued that he was "found" when he was arrested for assault in 2004 and that, therefore, the five-year statute of limitations had run on his illegal reentry charge. The panel rejected the Compian-Torres’ argument, even under the de novo standard, finding that he was not found until 2010 when he was transferred to immigration custody after a subsequent arrest for assault. The panel was unwilling to attribute knowledge to ICE of an alien’s physical presence simply because he’d been arrested by local authorities in 2004 and sentenced to the custody of the Bureau of Prisons for violating supervised release in 2006. Yes, that’s right. He was revoked for violating the supervised release from his previous illegal reentry conviction (but not charged with another illegal reentry), sentenced to a few months in BOP custody, and no one told ICE (supposedly).

The panel did not address which standard of review applied (plain error or de novo) since it found that Compian-Torres did not even survive de novo review. In its first unpublished decision in this case issued on October 24, 2012, the panel applied plain error because the appeal was couched in terms of sufficiency but presented a purely legal question that was not preserved in the district court. Compian-Torres filed a petition for rehearing arguing that de novo review applied and citing cases that used a de novo review for a sufficiency claim dependant on a question of legal interpretation. The panel granted the rehearing and addressed the legal question of "found" but did not resolve the question of which standard of review should apply.

In Garza, the Fifth Circuit panel held that Tapia applies to revocation sentences. Garza’s revocation sentence was erroneous because the district court considered Garza’s rehabilitative needs in imposing a prison sentence. The court sentenced Garza to 24 months in prison, even though his advisory guideline range was 3 to 9 months, noting that Garza should participate in the residential institutional drug treatment program. The panel vacated the sentence and remanded for sentencing since the error was plain at the time of appeal and it affected Garza’s substantial rights.

In Culbertson, the advisory guideline range of imprisonment was 5 to 11 months. The district court imposed a sentence of 30 months and 113 days for "punishment and deterrence from further criminal activity." Defense counsel objected to the "substantive and procedural reasonableness of the sentence." The district court overruled the objection and told Culbertson that the court is trying "to give you a period of time where you can, once again, get clean and sober and stay clean and sober and come out after you serve your sentence and stop using drugs and stay on your meds." Defense counsel questioned the need to triple the guidelines, and the court responded, "I think you need that time to get yourself stabilized."

So, was the court imposing the sentence because of rehabilitation, or was the court merely discussing the opportunities for rehabilitation Culbertson could access while imprisoned?

The panel decided it was the former given the court’s explanation for the lengthy sentence, even though the court did not specifically mention a rehabilitative program. The panel found that defense counsel’s objection did not preserve the alleged error, so plain error review applied. Nonetheless, this error was plain at the time of appeal and affected his substantial rights.

This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here).

Moreover, the Fifth Circuit ruling is by its own terms quite narrow, striking SORNA only as it applies in these “specific and limited facts.” The government sought review on, and the parties argue, even narrower questions. And both parties offer potential ways for the Court to dodge the core constitutional question. The government argues that the Court could simply correct the Fifth Circuit’s erroneous premise that Kebodeaux was not under a continuing federal registration obligation pre-SORNA and remand for further proceedings. Kebodeaux, for his part, argues that his failure to register occurred before SORNA applied to him, and therefore that he could not be validly convicted for failing to register under SORNA. (He says that the Attorney General had not yet issued valid regulations specifying that SORNA applied to pre-SORNA offenders when he failed to register.)

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Friday, April 12, 2013

No Merger of Wire Fraud and Money Laundering Convictions

Defendants argued that the wire fraud convictions merged with the money laundering convictions to impermissibly result in convictions for two crimes on the same facts. The panel rejected this argument.

In the Fifth Circuit, merger in the money laundering context

may be proved in two ways: (1) a defendant may demonstrate the underlying unlawful activity was not complete at the time the alleged money laundering occurred; or (2) a defendant may show the transaction upon which the money laundering count is based was not a payment from profits of the underlying crime made in support of new crimes, but, instead, was a payment from gross receipts of the previously committed crime made to cover the costs of that same crime.

Here,

Calhoun was a licensed home mortgage loan originator and a preacher who fleeced the flock. Larry and Keith Kennedy (collectively, "Kennedys"), who operated a loan closing business, Loan Closing and Title Service ("LCTS"), helped with the shearing.

First, the panel finds that the wire fraud crimes were complete before the conduct underlying the money laundering counts began. "Wire fraud is a consummated crime when the illicitly obtained funds are transmitted . . . ." Once that was completed, the indictment charges the defendants with money laundering for subsequent transactions.

Second, the panel concluded that the money laundering counts were not based on gross receipts of the wire fraud. The money laundering counts relied on transfers of money from LCTS to shell corporations and did not pay for the initial wire fraud, which was all profit. Thus, these crimes did not merge.

The panel also found that the evidence was sufficient for the convictions, and the deliberate ignorance instruction was proper. The district court did not err in denying the defendants’ Batson challenge, motion for mistrial, or motion for severance.

The panel rejected Garcia-Rico’s argument that the district court erred in imposing a three-level enhancement (§ 3B1.1(b)) for his alleged role as a manager or supervisor of the conspiracy in light of the unrebutted facts in his PSR that "Garcia-Rico received wired monetary payments from alien smugglers that were then used to smuggle, transport, and harbor illegal aliens." Chon also challenged his four-level enhancement (§ 3B1.1(a)) for being a leader or organizer of the money-laundering offense, but the panel affirmed given the evidence in the record.

The panel found, however, that the district court procedurally erred by not explaining the upward departure of forty-five months for Chon’s sentence. Chon did not object before the district court, so this was subject to plain error review. The district court only made a passing reference to § 3553(a) and did not provide any explanation for the sentence it selected. In the statement of reasons, however, the court indicated that it was departing "for reasons authorized by the sentencing guidelines manual" and then selected the box indicating that the sentence was based upon the government motion for upward departure. While this was clearly erroneous, the panel held that it did not affect Chon’s substantial rights since the government’s motion extensively discussed the rationale for recommending the statutory maximum for each count of conviction.

So, be sure to object in district court to unreasonable sentences. Otherwise, a judge’s mere checking of a box and the government’s arguments in a motion or in the PSR will be sufficient for appellate review.

Monday, April 08, 2013

Clarifies Review for Sufficiency of the Evidence: Was Verdict Irrational?

United States v. Vargas-Ocampo, No. 11-41363 (Mar. 14, 2013) (Davis, Jones, Smith)
The panel clarified that the Jackson v. Virginia, 443 U.S. 307 (1979), constitutional test for sufficiency of the evidence to uphold a conviction is simply "whether, viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The panel disavowed any language in previous Fifth Circuit cases that adds to this standard a caveat that if the evidence construed in favor of the verdict "gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then the appellate court must reverse." The panel reiterated the importance of leaving fact-finding to the trier of fact and that the only question under Jackson is whether the verdict "was so insupportable as to fall below the threshold of bare rationality." The panel affirmed Vargas-Ocampo’s conviction for drug trafficking, finding the evidence was sufficient. The panel also affirmed the use of an aiding and abetting instruction since aiding and abetting is an implicit charge in every indictment.

Saturday, April 06, 2013

Use Present Tense to Adopt Prior Statement or Is Hearsay; Insufficient Evidence for Money Laundering Count

United States v. Demmitt, No. 11-11120 (Feb. 1, 2013) (Stewart, Garza, Elrod)
The factual resume of the basis for a plea was impermissibly admitted hearsay. The witness did not admit on the stand that he made the statement and that it was true, so it was not adopted pursuant to Rule 801(d)(1). Instead, the prosecutor asked him, "did you swear that everything contained in the factual resume was true and correct?" The past tense flawed the witness’s adoption of the factual resume. The Government argued that its admission was harmless because it later became a prior inconsistent statement and would have been admissible at that point. The panel rejected this argument but found the error to be harmless due to the totality of the evidence adduced at trial.

The panel found that the use of the deliberate ignorance instruction was proper but that the Government did not present sufficient evidence to support one of Demmitt’s convictions for money laundering. Specifically, the Government did not prove that the wire transfer in question was designed to conceal the nature, location, source, ownership, or control of the fraudulently obtained money. The Government only proved that the wire transfer occurred and that it was connected to fraudulently obtained money. That conviction—one out of twenty-seven counts—was vacated.

Friday, April 05, 2013

Enticed Minor Even Though Communicated Only with Adult

United States v. Caudill, No. 12-10292 (Feb. 19, 2013) (DeMoss, Owen, and Haynes)
Caudill was convicted under 18 U.S.C. § 2422(b) for attempting to persuade, induce, or entice individuals whom he believed were eleven and thirteen years old to engage in criminal sexual activity. The underlying facts are that he communicated with an adult posing as the caretaker of two girls and arranged to pay the adult $100 in exchange for the opportunity to perform sex acts with the two girls. He never sought to have his communications passed on directly to a child. Nevertheless, the panel found that Caudill "used the Internet in an attempt to arrange direct conduct so that he could persuade, induce, or entice minor children to engage in sexual intercourse, or he used the Internet in an attempt to have an adult intermediary persuade, induce, or entice minors to have sexual relations with" him. Since he communicated with the adult intermediary and anticipated that the adult would lead the girls to submit to sexual activity with him, he violated § 2422(b).